ELLIOTT v. EAST 220TH STREET REALTY COMPANY LLC (2003)

Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 21, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

 There is no “ ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).   Even assuming that the dimensions of the defect in the stair are as depicted by and measured in the photographs of defendants' investigator, and that this depiction fairly represented the condition of the step at the time of plaintiff's accident, issues of fact remain as to whether the nature of the step defect was so sharp and abrupt that a shoe heel could become caught in it, so as to constitute a tripping hazard (Gerber v. West Hempstead Convenience Inc., 303 A.D.2d 212, 756 N.Y.S.2d 553).

 Moreover, the “time, place and circumstance” of the injury must be considered (Trincere, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441).   Although plaintiff acknowledged that she had been aware of the various holes or cracks in the staircase, it is not clear that she or any other tenant making normal use of the steps would have reason to suspect, from an upright walking position, that a shoe heel might become ensnared in the hole (see Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237).

 Finally, plaintiff's prior awareness of the defect, and the possibility that she may have been distracted from maintaining her footing because she was carrying her daughter and other items, “will impact the foreseeability of an accident and the comparative negligence of the injured party, but will not, as a matter of law, relieve a landowner of all duty to maintain his or her premises” (MacDonald v. City of Schenectady, 308 A.D.2d 125, 761 N.Y.S.2d 752).